Liberty for Cuba

"Our goal is not to have an embargo against Cuba; it is freedom in Cuba." Thus spake President Bush last month, at a White House ceremony marking the 99th anniversary of Cuban independence.

"The sanctions our Government enforces against the Castro regime are not just a policy tool; they are a moral statement. My administration will oppose any attempt to weaken sanctions against Cuba's government -- and I will fight such attempts until this regime frees its political prisoners, holds democratic, free elections, and allows free speech."

Good words; strong words. Whether they are also true words we will find out next month, when Bush must decide whether to let Title III of the Cuban Liberty and Democratic Solidarity Act finally take effect.

President Clinton signed the law, also known as Helms-Burton, in March 1996, following the Cuban government's murder of four unarmed American civilians. The four, members of Brothers to the Rescue, had been flying over international waters south of Florida, searching for stranded Cuban refugees. They died when the Cuban Air Force, without warning, blew their two small planes out of the sky. In the uproar that followed, Clinton agreed to let Helms-Burton become law, but then suspended Title III, its most important provision.

Title III is rooted in an ancient and obvious principle of law: A thief cannot pass good title to the property he has stolen, not even to an innocent third party who buys it from him in good faith. The original owner retains his rights and can assert them against the third party in any court having jurisdiction.

After seizing power in 1960, Fidel Castro nationalized -- that is, stole -- foreign-owned private property in Cuba. According to the Justice Department's Foreign Claims Settlement Commission, the property confiscated from American owners -- houses, factories, banks, mines, real estate -- was valued at more than $1.8 billion in 1960. The Castro regime never acquired lawful title to those assets. And when, desperate for hard currency after its subsidy from the former Soviet Union dried up, it began selling them to Canadian, Mexican, and European companies, they didn't either.

The American owners never surrendered their rights in their stolen property. But since the property remained in Castro's physical control, they also never had any realistic way of asserting those rights. Title III of Helms-Burton partially rectified that injustice by permitting the owners to bring suit in US court against the foreign companies that acquired the stolen goods from the Cuban government.

As former US Court of Appeals Judge Malcolm Wilkey analogized it in a 1997 essay, the foreign purchaser, "knowing that the property had been confiscated without payment to the rightful owner, is in no better moral or legal position in regard to his use of the property than a sleazy used car dealer who buys a car with the serial numbers chiseled off." Title III doesn't restore that stolen car to its original owner, but it lets him demand compensation from the sleazy used-car dealer who acquired it from the thief.

The purpose of Helms-Burton is to bring the Cuban people closer to freedom by applying economic pressure to the Cuban dictatorship. Title III would make it harder for foreign firms to do business in Cuba; that in turn would make it harder for Castro to amass the wealth that keeps him in power. But Title III has never taken effect because Clinton repeatedly invoked a presidential waiver to suspend it. Weakening Communist regimes -- whether in Cuba, China, Vietnam, or North Korea as well -- was never a Clinton priority.

The current waiver expires in July. If Bush really meant the words he spoke on Cuban Independence Day, he will refuse to extend it. That will send a message to our business-uber-alles allies in Canada and Europe: There is a price to pay for trafficking in stolen American property. And it will signal the abused and persecuted Cuban people that they have not been forgotten.

It is not repeated nearly often enough: Cuba under Castro is a hideous place to live. It is the only dictatorship in this hemisphere, a once-vibrant island ground into desolation by a Stalinist despot. It is a place where freedom of speech, of the press, of association are nonexistent. A place where government agents eavesdrop on private phone calls, read private correspondence, censor private e-mail. A place where all media is Castro's media, and where journalists who ask impertinent questions can go to prison.

Cuba's dictator has always had an American cheering squad: the leftist sycophants who look at 40 years of Communist ruin in Cuba and blame it on the United States[!!!], the credulous celebrities who gush about the "good things" Castro has done for "his people." With those sort of people, the Clinton administration was always quite comfortable.

That is going to change, says Bush. Liberty for Cuba will now be a White House priority. We will know that he means it if Title III takes effect.

Jeff Jacoby is a columnist for the Boston Globe.